Commonwealth v. Landing Grp., Inc.

Decision Date02 September 2021
Docket Number20-P-686
Citation174 N.E.3d 330 (Table),100 Mass.App.Ct. 1107
Parties COMMONWEALTH v. THE LANDING GROUP, INC., & another.
CourtAppeals Court of Massachusetts
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendants appeal from the judgment on the pleadings entered in the Superior Court in favor of the plaintiff, the Commonwealth of Massachusetts (Commonwealth).3 We reverse the judgment and remand for further proceedings.

Background. We summarize certain undisputed facts from the record, mindful that where the facts are in dispute, we must accept the defendants’ version of them. See Merriam v. Demoulas Super Mkts., Inc., 464 Mass. 721, 723 (2013). The individual defendant, Michael Rauseo, is the sole officer of The Landing Group, Inc. (TLG), which owns 175 Granite Street, Rockport, Massachusetts; the property in question. This property is bounded to the east by Pigeon Cove, a small bay off the Atlantic Ocean. The boundary between the property and the waters of Pigeon Cove is formed by a seawall, which is in a state of disrepair.

The construction of the seawall and the fill behind it was authorized by legislative grants in 1826 and 1830, as well as tidelands licenses granted in 1895, 1918, and 1941. The most recent recorded license for the property -- issued on July 2, 1941 -- authorizes a thirteen-foot high "masonry" wall. As it exists now, the seawall is made of "rows of granite blocks that extend from below the mudline to above the high-water mark," atop of which are "[c]oncrete caps of varying heights ... secured to the granite blocks[ ] with steel dowels and clips drilled into the granite."

In December of 2016, the defendants sought approval from the Rockport Conservation Commission (RCC) to "raise the seawall height" to fifteen feet and to fill "specific areas, as necessary." The RCC approved the work and issued an order of conditions (OOC). The Department of Environmental Protection (DEP) appealed the OOC and issued a superseding OOC denying approval for the project. The defendants appealed this denial and no permit issued.4

On June 1, 2018, Rauseo e-mailed the Rockport building inspector to inform him that Rauseo intended to perform "repair work" on the seawall. In his e-mail, Rauseo cited Bourne v. Austin, 19 Mass. App. Ct. 738 (1985), as support for proceeding without a valid OOC.5

The defendants thereupon commenced the work at issue in this case. It is uncontested that this work consisted of "removing the concrete debris," "replacing the steel[ ] dowels and clips with marine grade re[ ]bar," and pouring concrete "specifically designed for seawall cap applications." Rauseo directed contractors to "repair and replace the existing concrete cap, without elevating it, and without filling in any land areas." The new concrete caps were to be "in the same size and dimensions as previously existed." It also is uncontested that the defendants poured sixteen inches of concrete in one area without a permit.6

In June of 2018, the RCC issued a cease and desist order against the defendants on the grounds that they were "[w]orking on the seawall (coastal bank) without a permit" by drilling into the seawall, installing rebar, and mortaring the rebar "into the top stone of the seawall." On August 16 and 24, 2018, the DEP issued unilateral administrative orders (UAO), ordering the defendants to cease and desist work on the seawall because such work violated the Wetlands Protection Act, G. L. c. 131, § 40 (WPA), and the Waterways Act, G. L. c. 91 (chapter 91). The RCC also fined the defendants for failing to comply with "earlier" enforcement orders, the WPA, and a "local wetlands bylaw."

On September 4, 2018, the Commonwealth filed a complaint in the Superior Court alleging that the defendants continued to perform work "without authorization" and "in direct violation of multiple orders from [the RCC] and [the DEP] to cease this illegal activity." The Commonwealth sought a preliminary injunction, a "permanent injunction requiring future compliance with the WPA and [c]hapter 91," and civil penalties. On the same date, the Superior Court ordered the defendants to stop work on the seawall "until further order" and ordered a continuance of the case so that the defendants could file an application for emergency authorization to perform the work.

On September 18, 2018, the trial court entered a preliminary injunction restraining further work on the seawall. On October 11, 2019, the judge allowed the Commonwealth's motion for judgment on the pleadings and entered judgment against the defendants.7 The judge fined each defendant $2,500 under the WPA and $2,500 under chapter 91, and ordered the defendants to cease work on the seawall and to seek a permit to undo the work they had already performed. The judge subsequently stayed so much of the order and judgment pertaining to the latter provision in order to allow the defendants to apply for a permit to perform work at the site.8

After oral argument, we requested supplemental briefing from the parties. The defendants had appealed the UAOs. However, when the motion judge issued the preliminary injunction in this case, the DEP withdrew the UAOs and the administrative appeal was dismissed as moot. Both parties represented that the defendants have filed a permit application to perform work on the property and that the hearing for that permit application was scheduled for July 28, 2021.9

Standard of review. "We review the allowance of a motion for judgment on the pleadings de novo." Kraft Power Corp. v. Merrill, 464 Mass. 145, 147 (2013). In considering such a motion, "all of the well pleaded factual allegations in the adversary's pleadings are assumed to be true and all contravening assertions in the movant's pleadings are taken to be false" (quotation and citation omitted). Minaya v. Massachusetts Credit Union Share Ins. Corp., 392 Mass. 904, 905 (1984). See Wheatley v. Massachusetts Insurers Insolvency Fund, 456 Mass. 594, 596 (2010). Judgment on the pleadings is appropriate "only when the text of the pleadings produces no dispute over material facts." Tanner v. Board of Appeals of Belmont, 27 Mass. App. Ct. 1181, 1182 (1989). In considering a motion for judgment on the pleadings, a court can "properly take into consideration facts of which judicial notice may be taken," Jarosz v. Palmer, 49 Mass. App. Ct. 834, 835 (2000), S.C., 436 Mass. 526, 530 (2002), including "matters of public record, ... items appearing in the record of the case, and exhibits attached to the complaint." Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000). A court may only rule on a motion for judgment on the pleadings when "there are no material issues of fact remaining to be determined." Merriam, 464 Mass. at 726.

Discussion. The WPA provides:

"No person shall remove, fill, dredge or alter any bank, riverfront area, fresh water wetland, coastal wetland, beach, dune, flat, marsh, meadow or swamp bordering on the ocean ... or any land under said waters or any land subject to tidal action, coastal storm flowage, or flooding, other than in the course of maintaining, repairing or replacing, but not substantially changing or enlarging, an existing and lawfully located structure or facility used in the service of the public and used to provide electric, gas, sewer, water, telephone, telegraph and other telecommunication services, without filing written notice ... and without receiving and complying with an order of conditions and provided all appeal periods have elapsed." G. L. c. 131, § 40.

The defendants contend that the work at issue is a repair and is therefore exempt from the permitting requirements of the WPA. The Commonwealth argues that the work constitutes an alteration or filling and therefore requires such a permit.

Similarly, the regulations to chapter 91 allow a landowner to perform, without a license or permit, "maintenance, repair, and minor modifications ... of fill or structures for which a grant or license is presently valid." 310 Code Mass. Regs. § 9.05(3)(a) (2014). See 310 Code Mass. Regs. § 9.22 (2014) (providing nonexhaustive list of authorized maintenance and repairs). While the defendants argue that they are performing repairs and maintenance pursuant to their regulatory obligations and therefore that they did not need to obtain permitting or a license, the Commonwealth argues that the work the defendants are performing does not meet the definition of exempt maintenance and repairs.

We conclude that the record before us is insufficient to resolve the necessary factual inquiries. See Canter v. Planning Bd. of Westborough, 7 Mass. App. Ct. 805, 808 (1979) ("neither a motion under rule 12 [c] nor one converted to a motion for summary judgment under rule 56 can be granted properly where there is a genuine issue of material fact"). As the DEP moved for judgment on the pleadings, we must view the evidence in the light most favorable to the...

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